Acquired distinctiveness is often measured through consumer survey research. Keegan & Donato Consulting has extensive experience conducting acquired distinctiveness surveys to support a trademark application. We can assist you with obtaining such a survey and can customize it to suit your needs.
Keegan & Donato Consulting provides service to attorneys practicing in federal and state courts, before arbitration panels, the TTAB, the NAD, and other specialty venues. Principals Mark Keegan and Tony Donato offer clients more than 30 combined years of proven survey methodologies, deep operational insight, and broad industry experience.
We have worked with leading firms across the nation, including Notaro, Michalos & Zaccaria PC (New Jersey), Blood Hurst & O’Reardon LLP (San Diego), SmithAmundsen LLC (Chicago), and Ropes & Gray LLP (Washington, DC), on surveys accepted as evidence in litigation involving a broad range of products and services.
Descriptive Marks & Acquired Distinctiveness
Descriptive marks consist of a word or words that describe ingredients, qualities, or design characteristics (including trade dress) of the goods being sold. Descriptive marks cannot usually be granted trademark protection, but may become protectable if they achieve secondary meaning or acquired distinctiveness. Examples include Windows® for windowing software and Best Buy® for consumer electronics.
When a company has gained recognition in the minds of consumers for their products or services by continuously and exclusively using a descriptive trademark for over five years, the mark has most likely acquired distinctiveness.
This means that consumers have come to associate the mark with a single source because they have become very familiar with the mark and the brand behind the mark. In these circumstances, the mark is no longer considered descriptive since consumers primarily associate it with a single company.
Incorporating a consumer research study as part of your trademark litigation can help you prove acquired distinctiveness and secondary meaning, and should be a primary consideration in developing case strategy.
Should You Hire a Survey Expert?
Surveys are highly susceptible to criticism. You can expect the Courts to examine them for methodological flaws. Universe selection issues, interviewer bias, and suggestive wording may cause a judge to give a survey little weight or deem part or all of the results inadmissible.
For this reason, we highly recommend hiring qualified survey experts. Keegan & Donato Consulting’s methodologically sound consumer research studies and expert testimony will meet the Courts’ standards and serve as decisive evidence in your case.
Call Keegan & Donato Consulting at (914) 967-9421 to learn more about obtaining an acquired distinctiveness survey to support a trademark application. We will design a study to target relevant consumers in your client’s market and determine how these consumers perceive your client’s brand.